Lord Mackay of Clashfern

Lord Mackay of Clashfern served as Lord Chancellor under both Margaret Thatcher and John Major between 1987 and 1997. He is also a former Lord High Commissioner to the General Assembly of the Church of Scotland.

In the first case of its kind, a judge has recently ruled that the Christian owners of a guesthouse were acting unlawfully in restricting the provision of a double room to married couples and denying a double room to a homosexual couple in a civil partnership. The court accepted without reservation that the guesthouse policy was applied consistently to both unmarried heterosexual couples and homosexual couples. The defendants argued that their policy was based on their sincere beliefs about marriage, not hostility to anyone’s sexual orientation.

In a respectful judgment that correctly understands the nuances and sincerity of the defendants’ religious beliefs, His Hon. Judge Rutherford said: “I am quite satisfied as to the genuineness of the defendants’ beliefs and it is, I have no doubt, one which others also hold.” He added that the policy was based on “a perfectly orthodox Christian belief in the sanctity of marriage”, one which is already recognised by the courts in this country as a valid religious belief and it is a belief which itself is protected by equalities legislation and the Human Rights Act.

Judge Rutherford found for the claimants. The case hinged on the Equality Act (Sexual Orientation) Regulations, specifically Regulation 3(4) which, according to Judge Rutherford’s ruling, should be read to mean that a homosexual civil partnership must be treated in the same way as marriage when it comes to providing goods, facilities or services. The wording of the Regulations on that point is not particularly clear, but that appears to be the thrust of it. Therefore, Judge Rutherford ruled that providing a double room to a married couple but not to a homosexual couple in a civil partnership, is an act of direct discrimination of grounds of sexual orientation.

However, Judge Rutherford has granted leave to appeal. He recognises, quite rightly in my view, that this is a significant case with finely balanced and complex legal points. In granting permission for appeal he has departed from his normal practice (he prefers for the Court of Appeal to consider an application). He has done so for a number of reasons, one of which seems to me to be particularly important. He said his ruling “does affect the human rights of the defendants to manifest their religion and forces them to act in a manner contrary to their deeply and genuinely held beliefs.”

Lord Mackay of Clashfern served as Lord Chancellor under both Margaret Thatcher and John Major between 1987 and 1997. He is also a former Lord High Commissioner to the General Assembly of the Church of Scotland.

Concerns about the Equality Bill - amendments to which the House of Lords has begun to consider this week - have been growing in recent months and culminated on Monday in the publication of a timely book to which I have written the foreword, A Little Bit Against Discrimination? The publication draws attention to a series of failings in the Equality Bill but particularly those pertaining to the freedom of religious bodies to employ people living their faith.

The Bill proposes that churches and other faith bodies should only be able to appoint people practising the faith with respect to sexual ethics if the role in question is wholly or mainly concerned with liturgy or ritual or promoting or explaining doctrine. Legal opinions confirm that this won’t cover priests or pastors, let alone anyone assisting them, because church leaders don’t actually spend most of their time leading liturgy and ritual and explaining and promoting doctrine. These activities tend to be very focused on Sunday services which only occupy a few hours.

During the week, however, church leaders are very much engaged with pastoral and other responsibilities. Mindful of this, it is not clear how, if the Bill became law, many churches would be able to appoint pastors, ministers or priests, practising their particular faith tradition and thus it is not clear how they could continue to operate. Similarly, given that no positions in Church welfare projects are concerned wholly or mainly with liturgy, ritual, explaining and promoting doctrine, many bodies, especially those from the Evangelical and Catholic traditions, could not be confident of being able to appoint staff properly practising the faith to any position and thus, again, it is not clear how they could continue to operate. This change in employment law constitutes a very grave and worrying attack on religious freedom in this country. How have we arrived at such an unfortunate place?